JUDGMENT :

R. Banumathi, J.

Leave granted.

2. This appeal is preferred against the judgment dated 13.05.2011 passed by the Armed Forces Tribunal, Chandigarh in T.A. No. 242 of 2009 dismissing the application filed by the appellant seeking family pension for the death of her husband Ex. Sepoy Raj Singh.

3. Undisputed facts of the case are as follows:-

Raj Singh was enrolled in the 103 Infantry Battalion (Territorial Army) on 17.05.1995. He was disembodied from service with effect from 31.03.2008 under Rule 20 of the Territorial Army Rules, 1948 and during disembodiment Raj Singh died at his home on 04.08.2008 due to heart attack. Raj Singh rendered a total service of eleven years and two hundred eighty nine days. The family pension was denied to the appellant vide letter dated 12.12.2008 stating that as per the existing rules, territorial army personnel who died during disembodied state without completing fifteen years of embodied service are not entitled for service pension. The appellant, being the wife of the deceased, served a legal notice upon the respondents on 05.01.2009 for release of death-cum-retirement gratuity, service gratuity and family pension. The department issued a demand draft dated 21.10.2009 for Rs.1,82,448/- in favour of the appellant on account of service gratuity and death-cum-retirement gratuity. Aggrieved thereof, appellant preferred Writ Petition No. 16566 of 2009 seeking direction against the respondents to release the family pension. Upon constitution of Armed Forces Tribunal, Chandigarh, the writ petition was transferred to the Armed Forces Tribunal, Chandigarh and renumbered as T.A. No.242 of 2009 before the Tribunal.

4. The Tribunal vide impugned order dated 13.05.2011 dismissed the application inter alia holding that, Raj Singh did not have the requisite minimum qualifying embodied service of fifteen years to earn service pension, and hence upon his death while he was in disembodied state, the appellant was not entitled to family pension. The tribunal held that persons in territorial army cannot at all times be treated on par with the army personnel, the territorial army personnel while in disembodied state does not stand on the same footing as compared to regular army personnel and thus held that the appellant was not entitled to family pension. Contention of the appellant that denial of family pension to ‘next of kin’ of territorial army personnel who died in harness while in disembodied state is discriminatory and violative of Article 14 of the Constitution of India, was held untenable.

5. Relying upon Regulation 289 of the Pension Regulation for Army (Part-I) 1961 Edition, Mr. Naresh Kumar learned counsel for the appellant has contended that the Pension Regulation for Army 1961 apply to the regular army personnel as well as to the personnel of territorial army in certain contingencies. Learned counsel for the appellant therefore, submitted that, denial of family pension to the appellant when her husband admittedly died in harness is not justified when such a benefit is extended to the widow of a regular army personnel who died in harness. The Government circular dated 11.06.1985, especially paragraph 3(ii) thereof, read with subsequent circulars dated 30.10.1987, 03.02.1998 and 12.11.2008 was also pressed into service by the counsel for the appellant to substantiate his argument. It was contended that there is no statutory rule denying family pension to Territorial Army personnel dying at home and since the territorial army reservists during disembodied state are liable to be called at any time, failure of which is treated as absence without leave, denial of family pension in the event of Territorial Army personnel dying natural death during disembodied state would be arbitrary and discriminatory. Reliance was also placed upon judgments of various High Courts and tribunals.

6. Mr. Balasubramanian, learned counsel appearing for Union of India at the outset fairly submitted that the Pension Regulation